New U.S. Space Mining Law’s Treaty Compliance May Depend on Implementation

Alexander Soucek, head of the legal services department at the 22-nation European Space Agency. Credit: ESA video capture/SpaceNews

LONDON — European specialists in space law on Dec. 4 said the recently enacted U.S. Commercial Space Act may contravene international treaties and will inevitably stir up a hornet’s nest of opposition.

The law confers on U.S. citizens the right to engage in commercial exploitation of outer space minerals, a right that might be viewed as violating the United Nations Outer Space Treaty of 1967, which says in part: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

The United States is a signatory to this treaty.

On Nov. 25, U.S. President Barack Obama signed into law the U.S. Commercial Space Launch Competitiveness Act, whose shorthand title is the Commercial Space Act of 2015.

The law includes a chapter on “space resource commercial exploitation and utilization” whose language is clear enough. The goal, the law says, is to “facilitate commercial exploitation for, and commercial recovery of, space resources by United States citizens.” The act defines space resources as including water and minerals.

The law was applauded by commercial space advocates in the United States as removing an obstacle to capital investment in companies planning to mine resources on the moon or elsewhere.

None of these companies has raised anywhere near the financing needed to start commercial mining, but the law’s passage excited enormous discussion on social media networks, including allegations that it was a “criminal” appropriation by the United States of the global commons.

“Is the Commercial Space Act a violation of the Outer Space Treaty’s prohibition of national appropriation?” asked Alexander Soucek, head of the legal services department at the 22-nation European Space Agency. “It is very controversial; I can say that. There are lots of opinions on this.”

Soucek made his remarks during a regulatory and legal briefing organized by the international Bird & Bird LLP law firm. Soucek said that he and other legal experts had agreed before the meeting to modulate their views of the U.S. law, perhaps to avoid sidetracking a briefing devoted to other satellite finance and regulatory topics.

Tanja Masson-Zwaan, president of the International Institute of Space Law. Credit: Leiden University

Joanne Wheeler, a Bird & Bird partner, declined to state a firm opinion on the U.S. act’s legality beyond saying: “That’s a really good question. It really is pushing the boundaries.”

Tanja Masson-Zwaan, president of the International Institute of Space Law and deputy director of the International Institute of Air and Space Law at Leiden University in the Netherlands, said the U.S. move inevitably will be viewed as a provocation in many nations. But she noted that the law asks the president to submit to the U.S. Congress, within six months of the law’s enactment, a detailed report on how it will be implemented, and that only then will the full import of the law become clear.

The law specifically asks that the president detail which U.S. government agencies will be charged with administering the law.

U.S. citizens “shall be entitled to an asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained, in accordance with applicable law, including the international obligations of the United States,” the law says.

“We really need to wait to see the details coming in the report on the law’s implementation,” Masson-Zwaan said. “International law was not left out of the text.”

One possible way around the apparent ban on outer space resource ownership would be to assert that the exploitation of resources on international territory, such as the moon, does not constitute “national appropriation” of the territory, any more than commercial activity in international waters implies a claim to ownership of the oceans.

International space law is not clear on what is allowed, what is proscribed and what is subject to further review.

The Outer Space Treaty was followed, in 1979, by the United Nations Moon Agreement, which applies to other planets and asteroids as well and refers to “the benefits which may be derived from the exploitation of the natural resources of the moon and other celestial bodies.”

A Deep Space Industries concept for a spacecraft that could retrieve space resources from the surface of an asteroid. Credit: Bryan Versteeg / DSI

The Moon Agreement accords nations the right to use outer space resources “in quantities appropriate” to sustain space exploration efforts.

But the same agreement says that no lunar resources, on the surface or subsurface, may become anyone’s property, a statement of principle that is difficult to square with the acknowledgment of the benefits of natural resource exploitation.

Written a decade after the first Apollo lunar landing, the Moon Agreement asks its signatories to establish an international legal regime “to govern the exploitation of the natural resources of the moon, as such exploitation is about to become feasible.”

What seemed imminently feasible in 1979 never occurred. But technology advances since then and the recent revival of private-sector interest in space commercialization spurred by cash-rich Silicon Valley investors may provide the necessary push for the creation of international rules of the road as called for in the Moon Agreement.

“The fact is that to move to the next era in space exploration, some nation had to take the first step and that nation probably had to be the United States,” Masson-Zwaan said.